Problematic Clauses, Rationale and Alternates
FAR Clauses
52.204-2 Security Requirements
University requires Alt I, which allows educational institution the opportunity to revise the statement of work or terminateif the level of security classification increases
52.215-2 Audit and Records
University requires Alt II, which incorporates OMB A-133 single audit requirements, which is appropriate for educational institutions.
52.216-7 Allowable Cost and Payment
University requires Alt II as it applies to cost reimbursement contracts only, per prescription 16.307(a), -The Alternate changesthe reference from 31.2 to 31.3 (OMB A-21), which is appropriate for educational institutions.
52.227-3 Patent Indemnity
Per prescription 27.201-2(c)(1) this clause should be used in contracts that result in delivery of commercial items, which is not applicable to the University as it does not deliver commercial items. The University has no authority to enter into contractual agreements that require indemnification. Contracts requiring indemnification are subject to the authority and approval of the Attorney General for NC.
52.227-14 Rights in Data
University requires Alt IV, which provides the contractor with the right to data first produced in the performance of the contract. As prescribed in 27.409(b)(5), Alternate IV should be substituted in place of paragraph (c)(1) in contracts for basic or applied research to be performed solely by Universities.
52.227-17 Rights in Data – Special Works
This clause is problematic for the University because it creates a publication restriction (requires prior written approval to publish). The University policy allows for the timely review of publications, to protect proprietary or confidential information, but prior approval is contrary to the UNC Board of Governors Policy and requires permission from the President of the University for formal deviation from BOG policy.
52.222-44 Fair Labor Standards and Service Contract Act – Price Adjustment
The Services Contract Act of 1965 is not applicable to the University because employees working on the contract are bona fide executive, administrative, or professional employees, not service employees pursuant to prescription 22.1006(a).
52.230-5 Cost Account Standards – Educational Institutions
Pursuant to prescription 30.201-4(e) this clause should always be inserted with Educational Institutions when CAS applies.
52.245-1 Government Property - If property is purchased under a Federal contract, title vests in the government and a campus-wide property management plan for government property is required;
Universities requires Alt II, that providesContractor automatic ownershipto property with a value less than $5,000. The Contractor must request ownership of property granter than $5,000.
52.249-5 Termination for Convenience of the Government (Educational Institutions)
Prescription 49.502(d) states that this clause should be used in contracts that are fixed price or cost reimbursement for research and development work with an educational institution.
DFARS Clauses
252.204-7000 Disclosure of Information
This clause cannot be accepted by the university because it creates a publication restriction (requires written prior approval, as opposed to timely review to protect proprietary or confidential information).
There is not an alternate for this clause. Possible remedies include:
NSDD189 – Requires information to be classified if the intent is to restrict
242-204-7000 Release of Information (Dec 1991) Deviation
The contractor shall be free to publish, permit to be published, or distribute for public consumption, any information, oral or written, concerning the results of conclusions made pursuant to performance of this contract; provided, however, that it shall provide copies of any such publication or release of information to the government’s contracting officer for review and comment at least thirty (30) days prior to any such release.
252.223-7004 Drug Free Workforce
Prescribed at 223.570-4 for DoD contracts involving access to classified information or when the contracting officer determines the clause is necessary for reason of national security or for the purpose of protecting the health or safety of those using or affected by the project of, or performance of, the contract.
Universities are not required to make assurances for a Drug-Free Workforce, but do make assurances to a Drug-Free Workplace(52.223-6). Further, most University limit their research and development activities to fundamental or basic research and development and not controlled or classified R&D.
252.227-7020 Rights in Special Works
See 52.227-17 above – similar clause and also problematic
252.246-7001 Warranty of Data
The University is prohibited from entering into agreements that require us to warrant the performance of our research services. The reason for this is that warranties are like guaranties, which by their nature include the waiver of certain legal defenses that would be available in a normal breach of contract action relating to breach of representation. As a state agency, the University does not have the authority to waive any defenses in a contract. The Attorney General is the only person who has the authority to waive any legal defenses. Research by its nature is uncertain and without guarantee of results. The University can’t make any warranties regarding its ability to achieve, nor shall it be bound to accomplish, any particular research objective or result. However, the University will agree that the work performed hereunder will represent its good faith efforts and will be of the highest professional standards and quality.
MISC Supplemental Agency Clauses
ARL 52.004-4400 Foreign Nationals Performing under Contract
This clause is unacceptable to the University because it requires prior review and approval for any foreign nationals working on the project, which would negate the project as fundamental research.
ARL 52.005-4401 Release of Information
See 252.227-7020 Rights in Special Works and 52.227-17 above
AFMC 5352.227-9000 Export Controlled Data Restrictions
Contains a foreign national restriction and requires that University obtain export license for foreign nationals to work on project
US DOT TAR 1252.242-72
This clause creates a publication restriction. Pursuant to the prescription at 1242.7000
(a) The contracting officer may use the clause at (TAR) 48 CFR 1252.242-70, Dissemination of Information—Educational Institutions, in lieu of the clause at (TAR) 48 CFR 1252.242-72, Dissemination of Contract Information, in DOT research contracts with educational institutions that require the release or coordination of information.
FAR Clauses specific to Educational Institutions
(NOTE: add to exception letter if FAR clauses not included in RFP)
FAR 52-215-2 Audit and Records. University requires Alt II which incorporates OMB A-133 single audit requirement;
FAR 52-216-7 Allowable Cost and Payment. University requires Alt II as it applies to cost reimbursement contracts. The alternative changes the reference from 31.2 to 31.3 (OMB A-21), which is appropriate for educational institutions.
FAR 52.230-5 – Cost Accounting Standards – Educational Institution;
FAR 52.227-14, Rights in Data, we request Alt IV be added to the contract.
FAR-245-1, Alt II, Government Property be added to the contract.